Extraterritorial jurisdiction

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

Any authority can claim ETJ over any external territory they wish. However, for the claim to be effective in the external territory (except by the exercise of force), it must be agreed either with the legal authority in the external territory, or with a legal authority which covers both territories. When unqualified, ETJ usually refers to such an agreed jurisdiction, or it will be called something like "claimed ETJ".

The phrase may also refer to a country's laws extending beyond its boundaries in the sense that they may authorise the courts of that country to enforce their jurisdiction against parties appearing before them in with respect to acts they allegedly engaged in outside that country. This does not depend on the co-operation of other countries, since the affected people are within the relevant country (or at least, in a case involving a person being tried in absentia, the case is being heard by a court of that country). For example, many countries have laws which give their criminal courts jurisdiction to try prosecutions for piracy or terrorism committed outside their national boundaries. Sometimes such laws only apply to nationals of that country, and sometimes they may apply to anyone.

Economic sanctions against other countries may be instituted under either domestic law or under the authority of the United Nations Security Council, and their severity can include measures against foreign persons operating outside the country in question.

Extraterritorial jurisdiction plays a significant role in regulation of transnational anti-competitive practices. In the US, extraterritorial impacts in this field first arose from Standard Oil Co. of New Jersey v. United States,[3] where Imperial Oil in Canada was ordered to be divested from Standard Oil. Current practice dates from United States v. Alcoa,[4] where the effects doctrine[5] was introduced, allowing for jurisdiction over foreign offenders and foreign conduct, so long as the economic effects of the anticompetitive conduct are experienced on the domestic market.[6] The effects doctrine has been gradually developed in the U.S. and then in various forms accepted in other jurisdictions. In the EU it is known as the implementation test.[7]

Extraterritorial jurisdiction in the area of antitrust faces various limitations, such as the problem of accessing foreign-based evidence,[8] as well as the difficulties of challenged anticompetitive conduct arising from foreign state involvement.[9]

against or on board a Canadian ship on the high seas or a fixed platform attached to the continental shelf of Canada, or by or against a Canadian citizen on any ship or fixed platform, or by any person who is found in Canada after such offence

Generally, the U.S. founding fathers and early courts believed that American laws could not have jurisdiction over sovereign countries. In a 1909 Supreme Court case, Justice Oliver Wendel Holmes introduced what came to be known as the "presumption against extraterritoriality," making explicit this judicial preference that U.S. laws not be applied to other countries. American thought about extraterritoriality has changed over the years, however. For example, the Alien Tort Statute of 1789 allows foreign citizens in the United States to bring cases before federal courts against foreign defendants for violations of the "law of nations" in foreign countries. Although this statute was ignored for many years, U.S. courts since the 1980s have interpreted it to allow foreigners to seek justice in cases of human-rights violations in foreign lands, such as in Sosa v. Alvarez-Machain.[22] In Morrison v. National Australia Bank, 2010, the Supreme Court held that in interpreting a statute, the "presumption against extraterritoriality" is absolute unless the text of the statute explicitly says otherwise.[23]

Unlike most nations, the United States also attempts extraterritorial application of U.S. personal tax laws. The Foreign Account Tax Compliance Act is an extension of this concept, which focuses on enforcement.

^18 U.S.C.§ 7 (subject to the provisions of any treaty or international agreement)

^as clarified under s. 901, Pub.L. 104-132–110, 1317 Stat.[1]: “The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.”